What Will Conservatives Say If Only the Mandate Is Struck Down?

There seems to be a consensus building that the most likely outcome from the Supreme Court on the Affordable Care Act is that it will strike down the individual mandate but leave most of the law in place. Just how disruptive this will be to the near future of health care in America is open to debate (see Sarah Kliff for the optimistic take), but there's another question I'm wondering about: How are conservatives going to react?

Obviously, they'd prefer it if the law was struck down in its entirety. At the same time, they've centered their criticism on the mandate. This started as a purely opportunistic move, since the mandate was not only unpopular, but it offerend the most likely legal vehicle to undo the ACA. But once that decision was made, they spend the next couple of years talking about how that mandate is the very essence of tyranny. That process of arguing almost certainly convinced them that what they were saying was true. The other provisions in the law range from things they don't like but aren't yet enraged about (e.g. expanding Medicaid to serve more people) to things they claim to love and want to keep (e.g. no pre-existing condition exclusions for kids). So if the Court strikes down the mandate, they get something like what they claim they wanted: a bunch of benefits to people, without the Stalinist requirement to carry health insurance. At that point, they'll be faced with a dilemma.

One option would be to declare victory. We killed the mandate, yay! But that leaves us with just the popular parts of Obamacare, which will keep on being enacted, likely pleasing the public. After all, people are quite happy about the parts that have already gone into effect, and the benefits will only increase. Democrats can say, it would have been better if the ACA had been upheld in its entirety, but thank us for all this good stuff you're getting. And they'll have grounds to blame Republicans for the bad things that remain in the health insurance system.

The other option for the right is to say that this was a first victory, but we still have to repeal the rest of the law. That would give them something to fight about, with some possibility that they might succeed in undoing more of the ACA. But without the mandate, what will they say is the next freedom-crushing component of the ACA that threatens our precious bodily fluids? It's hard to think of what it might be.

So I'm guessing they'll do the following: declare victory, promise that very soon they'll be releasing their plan for FreedomLibertyCare, a market-based solution that will solve all our problems, then never mention it again. In years to come, when Democrats accuse them of wanting to take away the popular benefits of the ACA, they'll pretend they were for those benefits all along.

About the Author

Paul Waldman is a weekly columnist and senior writer for The American Prospect. He also writes for the Plum Line blog at The Washington Post and The Week and is the author of Being Right is Not Enough: What Progressives Must Learn From Conservative Success.